R/SCR.A/4518/2025 ORDER DATED: 16/09/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (FOR CONSENT QUASHING) NO. 4518 of 2025 ========================================================== AJAY GUJARATI S/O BEJI GUJARATI Versus STATE OF GUJARAT & ORS. ========================================================== Appearance: MR AJ YAGNIK(1372) for the Applicant(s) No. 1 MR KRUTIK PARIKH, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 16/09/2025 ORAL ORDER [1.0] Registry to accept vakalatnama of learned advocate Mr. Tushar L. Chauhan, who has instructions to appear for respondent No.3 – victim. Though matter is filed under the head of consent quashing, respondent No.2 – original complainant has expired pending the petition and therefore, petition is considered on its merits. [2.0] RULE. Learned APP waives service of notice of Rule for and on behalf of the respondent No.1 – State of Gujarat and learned advocate Mr. Tushar L. Chauhan waives service of notice of Rule for and on behalf of respondent No.3. [3.0] By way of this petition under Article 226 of the Constitution of India read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”), the petitioner has sought for quashing of the FIR being CR No.11192061210080 of 2021 R/SCR.A/4518/2025 ORDER DATED: 16/09/2025 registered with Viramgam Town Police Station, District Ahmedabad for the offences under Sections 363, 366 and 376 of the Indian Penal Code, 1860 and under Sections 4, 5(l), 6 and 8 of the Protection of Children from Sexual Offences Act alongwith the proceedings of POCSO Case No.19/2021 pending in the Court of learned Additional Sessions Judge, at Viramgam, District Ahmedabad. [4.0] Heard learned advocate for the petitioner, learned APP for respondent No.1 – State of Gujarat and learned advocate Mr. Tushar L. Chauhan appearing for the victim - prosecutrix. [5.0] Learned advocate for the petitioner has submitted that vide order passed by the Division Bench of this Court in the proceedings of Special Criminal Application No.5448 of 2021, the petitioner and victim were allowed to get married under the Special Marriage Act and since then are residing together and out of their wedlock, baby is born which is aged 3 months and therefore, has requested to allow the present petition. [6.0] Learned APP has vehemently opposed the petition and submitted that offence is serious one and against the State and therefore, has requested not to entertain the present petition. [7.0] Learned advocate for the respondent No.3 has supported the version of petitioner and affirmed the factum of marriage solemnized between her and petitioner and the birth of minor baby and that they are residing together. Respondent No.3 has also filed an affidavit, which is taken on record, wherein she has R/SCR.A/4518/2025 ORDER DATED: 16/09/2025 affirmed the fact that respondent No.2 – complainant has passed away pending the present petition. Therefore, he has requested to pass appropriate order. [8.0] Having heard the learned advocates for the respective parties and having gone through the complaint filed by the respondent No.2 – complainant which is produced at Annexure-A, it appears that the respondent No.2 – informant has filed a complaint and alleged that his daughter aged 17 years eloped with the present petitioner. Pursuant thereto, the original complainant filed Special Criminal Application (For Habeas Corpus) No.5448/2021 which came to be disposed of vide order 18.01.2022 wherein it has been observed that, corpus – respondent No.3 herein do not wish to join the parents and accordingly the said petition was disposed of. Thereafter, respondent No.3 herein – victim after attaining the age of 18 years, preferred CR.MA No.1/2022 in SCR.A No.5448/2021 seeking permission to join the present petitioner and accordingly the said application was disposed of permitting the petitioner and respondent No.3 to enter into marital relationship. [9.0] After going through the papers produced on record, the marriage registration certificate dated 17.01.2023 produced at Annexure-D as also the birth certificate of minor baby born out of the wedlock, it appears that the petitioner has married with the victim – respondent No.3 herein. Further, respondent No.3 has filed an affidavit, wherein she has stated that she eloped with the petitioner at her own will and volition and no one from the R/SCR.A/4518/2025 ORDER DATED: 16/09/2025 petitioner’s house forced her and she married the petitioner with the permission of the Division Bench of this Court and after getting married, petitioner and respondent No.3 are living happily and are also having a minor baby out of the wedlock. Keeping in mind the aforesaid facts, prima facie, it appears that victim is major and she eloped at her own will and volition with the petitioner and married with him and there is no evidence to show that she was abducted by the petitioner. Therefore, offence under Sections 363 and 366 of the IPC is not made out. [10.0] It is necessary to consider whether the power conferred by the High Court under Article 226 of the Constitution of India is required to be exercised on the ground that prima facie offence is not made out as the victim was at the verge of majority and out of romantic relationship or affair, she eloped on her own volition and thereafter, she entered in the marital relationship and under the Special Marriage Act, marriage was registered and both are happily living and hence, no purpose would be served to continue prosecution or to continue their married life with the baggage of mental agony and pressure and even otherwise, complainant has expired and as discussed in earlier part, offence of abduction and kidnapping is not made out and therefore, there is bleak chance of conviction and prosecution is unable to prove any guilt of the accused in absence of any cogent material or evidence and trial would become only rigmarole. Hence also, this Court is of the considered view that this is a fit case to exercise extraordinary jurisdiction under Article 226 of the Constitution. It is also pertinent to note that till date no R/SCR.A/4518/2025 ORDER DATED: 16/09/2025 cognizance has been taken in the case and petitioner – accused having no past antecedents as submitted by the learned advocate for the petitioner. [11.0] After going through the contents of complaint, it appears that uncontroverted allegations are made in the complaint. If accepted the same, the commission of offence under Sections 363 and 366 of the IPC is not made out as the victim voluntarily left her home and went alongwith the petitioner – accused and subsequently both got married pursuant to the order passed by the Division Bench in Habeas Corpus Petition when she turned major. Even if the allegations made in the complaint are taken at its face value and accepted in its entirety, did not constitute any offence or make out the case except the conversation or talk on mobile which cannot implicate the applicant in the offence. [12.0] Even the Hon’ble Supreme Court in the case of Lata Singh versus State of Uttar Pradesh, reported in AIR 2006 (5) SCC 475, held that the victim is major and she is free to marry anyone she likes and it appears that the alleged offence is abuse of the process of law. [13.0] Even keeping in mind the law laid down by the Hon’ble Supreme Court in the case of Fazle Gaffar Khan versus State of West Bengal, reported in 2000 (1) SCC 10, wherein the Hon’ble Supreme Court has quashed and set aside the criminal proceedings in the similar type of facts involved in the case under R/SCR.A/4518/2025 ORDER DATED: 16/09/2025 Sections 363, 366 and 376 of the IPC and subsequent addition of the provisions of POCSO Act. In this case also an affidavit has been filed by the victim which clearly states that she has married, residing together with the petitioner and also having a minor child aged 3 months out of the wedlock. [14.0] In view of the above, it appears that the FIR does not reveal any of the ingredients of the alleged criminal offence and the case appears to be nothing but an abuse of process of law and bona fide lapse. [15.0] In the result, petition is allowed. Impugned FIR being CR No.11192061210080 of 2021 registered with Viramgam Town Police Station, District Ahmedabad alongwith the proceedings of POCSO Case No.19/2021 pending in the Court of learned Additional Sessions Judge, at Viramgam, District Ahmedabad is hereby ordered to be quashed and set aside qua the present petitioner. All consequential proceedings pursuant thereto shall also stand terminated. Rule is made absolute. It is made clear that this order has been passed in peculiar facts and circumstances of the case and shall not be treated as precedent. Direct service is permitted. (HASMUKH D. SUTHAR, J.) Ajay Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: AJAY CHANDRAN MENON(HC00939), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 16/09/2025 18:48:53